A locus for eccentrics (hopefully)

Thursday, June 26, 2008

The Judiciary

A rash of decisions have been handed down over the course of the last week, as the Supreme Court's term winds down. Some of the more notable decisions involved the overturning of Death Penalty Laws for child rape in Louisiana (and 5 other states), a $2 billion reduction in the amount of punitive damages against Exxon for the Valdez oil spill, allowing enemy combatants to challenge their detentions before civilian judges in the United States, and the first conclusive interpretation of the Second Amendment since its ratification in 1791, wherein the Court declared the amendment protects an individual's right to own guns no matter what, or whether that right is somehow tied to service in a state militia.

I've have always been greatly interested in the many issues surrounding the Judicial Branch, and am curious as to how closely the rest of you track these decisions as well as your feelings on them.

Perhaps the most central debate surrounding the Judiciary, as you all well know, is the battle between the so-called "Originalist," wing of the Court, who stand for the proposition that the Constitution has a fixed and knowable meaning, which was established at the time of its drafting, (Roberts, Alito, Scalia, Thomas) and those who believe in the idea of a Living Constitution, ie the idea that the Constitution was written in flexible, dynamic terms (Breyer, Ginsburg).

After wracking my brain to try and come up with a succinct yet eloquent way to describe originalism, I decided to steal the best summary I could find from some dude who has a blog on philosophy and martial arts:

"Originalism is a theory of Constitutional interpretation that focuses upon the text of the Constitution in seeking it's original meaning at the time it was promulgated. Thus, an originalist jurist would seek to obtain the Constitution's original meaning through historical analysis and then apply that meaning to contempory issues that come before the Court. Originalists argue that if the Constitution does not speak on the contemporary issue, then the Court has no business in rendering a decision that usurps the legislative branch.

In contrast to originalism is the "Living Constitution" view of interpretation. According to this view, the Constitution is a living and ever evolving document that needs to be flexible to the changing values and needs of an ever evolving society. It's meaning is not fixed. It is dynamic."


This tension is the basis of so much of the controversy surrounding the Federal Judiciary.

I have framed the basic debate in the simplest and crudest terms possible. There are obviously nuances in this battle, but this is the Cliffs Notes version.

Using the above description as a starting point, I was kind of curious to get y'all's opinion on the major debate between these schools of thought. For me, its a fascinating dichotomy, and both sides have potent arguments. I am really eager to know how you guys view the role of the judiciary, and which side of the great divide you find yourselves. Take a side, and tell me why.


Blogger Omar said...

A correction to the end of the first paragraph: In describing the gun control decision, I meant to say "...the Court declared the amendment protects an individual's right to own guns no matter what, and the right is NOT tied to service in a state militia." Apologies for the confusion.

10:32 AM

Blogger steve said...

I think many of the problems in US government institutions, the originalism included, can be boiled down by our misplaced reverence for the founders of our constitution. I think it is now a major detriment to our country that it is a practical impossibility to reform any of the institutions created during the founders' time because of hero worship. Why haven't we meaningfully changed many of the institutions that don't seem to work for us anymore or provide results we are unhappy with? Instead we are forced to resort to unofficial, nonlegislative measures to chip away at some of the absurdities. In most democracies, the answer would be simple: make some changes to the constitution to make it work better or clarify laws that the supreme court has to interpret.

This struck home to me as I've been collecting election and candidate list information for western european democracies. Most of the democracies are not weighed down by an immutable-word-of-god constitution. They therefore change their electoral system when it isn't working for them, or make other fundamental changes to the laws of their country. We cannot do the same because of tradition and reverence.

2:12 PM

Blogger steve said...

To more directly address your question, it's clear I support a living constitution model. But I would love to see a living constitution interpretation from the individuals most responsible for that constitution, the US congress. It would certainly make the Supreme Court's job easier and less powerful. It is certainly bothersome to think that a small group of unelected judges hold substantial political power that is not necessarily warranted to them, largely because of an inability to make changes to the laws of the United States by Congress.

2:15 PM

Blogger steve said...

And I certainly do recognize that saying certainly in consecutive sentences is bad form. heh.

4:36 PM

Blogger Daniel said...

Hi, Omar,

Quite a nice post. I actually don't keep up on these things; I hold "information overload" as a foil against my duty to vigilant citizenship. On that note: is there a succinct way to keep up on these things, even, perhaps, with an RSS feed?

Anyway, I, too, see each side with valid underpinnings. For the originalists, might we not say that the system of amending the constitution is a sound way to preserve original language while also adapting the document (more the moral structure it purports to codify) to fit a dynamic society?

For the Living Constitution folks, we could borrow a gross if maybe useful analogue: standards-based web design. In this case, the complete separation of content and display mirrors (again, grossly) the relationship between the original constitutional statements and any amendments thereto. There is no web developer who has managed to create an (X)HTML structure that doesn't eventually need updating, to address new capabilities, updating the CSS notwithstanding.

To Steve's point, there is some hero worship endemic to the originalist viewpoint. Without wanting to hijack this thread and go quite a bit out on a tangent, there is arguable worth in hero worship so long as it's tempered with some reason. Whether that's sufficient to justify holding the original terms of the Constitution as sacrosanct, well, that's the question. If I had to pick a leaning, I might prefer leaving the original statements alone and use the amendment system to address the needs of a changing society.

We might consider, actually, what kinds of and how much change we're actually experiencing.


9:24 AM

Blogger Omar said...

Steve, one of the primary things that Originalists consistently indicate seems to go to your primary point; Originalists contend that the kind of societal change that people like us may want can best be brought about via the legislative process and it is anti-democratic to try it any other way.

In that sense, the Constitution, viewed literally and through the lens of history, actually offers very little obstacles to change. I really hate always having to utilize the abortion issue as a way to frame this (because there are many more interesting Constitutional issues swirling around that get much less media attention), but it proves to be a useful point:

Originalists contend that nothing in the Constitution specifically prohibits abortion, just as nothing in it specifically allows it. Their view is that the Constitution simply doesn't address this issue and the Court should not be in the business of second-guessing legislative bodies who rule one way or another. No one on the Court is saying the Constitution doesn't allow abortion; if you want it so badly, pass a law.

To utilize unelected judges to foster these types of developments circumvents the democratic process.
For me, its a powerful argument because it seems to make no normative judgment on the substance of the issue at heart. Many conservatives, for example, miss the point and believe that the Constitution specifically prohibits abortion. Nonsense. But legislatures should be given tremendous deference in formulating these types of laws, unless they run afoul of any of the specific provisions of the Constitution. Under this textual view, I really don't think the Constitution presents as many impediments to meaningful change that you might think; in fact, its a pretty spare document.

9:39 AM

Blogger steve said...

Right, I hear you. But I'm a realist and therefore have to support a living constitution. I don't necessarily see a contradiction though--given the extremely unhealthy respect we have for the constitution, any sane person or judge is forced to be interpret the constitution as a living document. Otherwise the country would be virtually ungovernable.

11:27 AM

Blogger Omar said...

Daniel, the primary web sources I use to track whatever is going on with the Court are the SCOTUSBLOG, (www.scotusblog.com) and the Oyez Project (www.oyez.org), both of which are pretty comprehensive. Oyez includes full texts of opinions as well as transcripts and audio of the oral arguments in each case.

And as far as Steve's point, I agree there may not be that much of a contradiction. I have never seen as much blind reverence for national founding fathers in other countries as I have with the US. Other countries (even much older ones) seem to have no problem dispassionately analyzing or throwing out whatever archaic aspects of their institutional framework impedes national progress. We seem to be unable to do that, given our collective hard-on for the "infallible wisdom," that went into constructing our governmental structures.

11:16 AM

Blogger neill said...

I thought that Scalia's decision to ignore the first clause of the amendment was a pretty clear reminder that "Originalism" is a political artifice.

10:01 PM

Blogger Omar said...

In his defense, I don't think he ignores the first clause in his opinion.

The opinion analyzed the prefatory clause and concluded that the clause announces a purpose, but
does not limit or expand the scope of the second part, the operative
clause. According to Scalia, the operative clause’s text and history demonstrate that it
connotes an individual right to keep and bear arms.

The opinion held that "the 'militia' comprised all males physically capable of acting in concert for the common defense. The Anti-federalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing
army or a select militia to rule. The response was to deny Congress
power to abridge the ancient right of individuals to keep and bear
arms, so that the ideal of a citizens’ militia would be preserved." (From the holding)

He doesn't ignore it; he does analyze it under an Originalist framework, utilizing text and history. He just seems to come to a different (albeit convenient) conclusion.

2:39 PM

Blogger neill said...

Thanks for the clarification, Omar. However, isn't the 2nd unique (or close to it) in having a prefatory clause or any sort of qualification included in it? Other amendments that have (arguably) given rise to much more creative interpretation, such as the 14th, lack a qualifier even though they were directed at one very particular historic event; you would think that the militia clause is noteworthy for its ability to point us to the "founder's intent," and would be heavily weighted as such for an Originalist.

Or, as you suggest, it could just be an extremely convenient coincidence.

11:15 AM

Blogger Omar said...

You are right in noting that the 2nd is the only amendment in the Bill of Rights with such a clause. And you would think that the presence of such language would be a fairly clear indicator of the intent of the founders. I can't disagree. There may well be a degree of cherry picking at times when it comes to determining intent.

6:18 PM


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